The Perry case and the roller coaster ride to come

by on May 30, 2009  •  In Constitutional law, Marriage

As I am sure my readers know, two aging super-litigators with too much time on their hands – Gore lawyer David Boies and uber-Republican Ted Olson – have joined forces to argue that Prop 8 violates the Equal Protection Clause of the U.S. Constitution.  They are correct, of course. But as everyone also knows, the lgbt advocacy groups have successfully prevented a federal constitutional challenge to marriage exclusion for more than a decade. This is because the current Supreme Court is, shall we say, extremely unlikely to rule favorably.

Now along come Dave and Ted looking for a new way to regain the media spotlight (watch press conference here) and, voila, we have a whole new ballpark opening with a whole new (major league) addition to the endless-gay-marriage-debate world series. And indeed for those who are only spectators to what admittedly can seem at times like a spectacle, the new lawsuit will shake things up and provide some excitement and entertainment.  But for those who are serious advocates, it will bring endless and unnecessary headaches.

More important than the complaint in the new case is the fact that plaintiffs are seeking a preliminary injunction, meaning that they are asking the court to block enforcement of Prop 8 immediately. (See motion for preliminary injunction.) To justify such fast action before any factual hearing, courts require plaintiffs to demonstrate that they have a strong likelihood of success on the merits. This move forces the court to go quickly to the underlying legal claim, even though it imposes a higher-than-normal standard for the plaintiffs to meet; ie, they have to persuade the judge not just that they are correct, but that it isn't a close case, and that they clearly would win after fuller consideration of background facts and so forth. It is true that in this situation, one imagines that everyone in California not living in a cave has pretty much heard as much about gay marriage as it is possible to absorb, but that is different from the kinds of facts about, for example, the impact of the exclusion on gay families that lawyers could develop and present to the court on a slower time track. (By contrast, building a rich factual record was Lambda's strategy in their successful Iowa case.)

So the new lawsuit (Perry v. Schwarzenegger) is now scheduled to be heard before Judge Vaughn Walker in federal court in San Francisco in a little more than a month: July 2. Judge Walker is known as a somewhat unorthodox conservative. It seems hard to imagine that he will grant this preliminary injunction, but then you never know about California Republicans.

In any event, either a denial or a grant of a preliminary injunction is immediately appealable (most decisions prior to final judgment cannot be appealed, but rulings on an injunction are an exception). This means that the case will go to the Ninth Circuit, possibly by the end of this year. Things get interesting there, because the Ninth Circuit Court of Appeals has ruled (in Witt v. United States, 527 F.3d 806) that infringements of important liberty rights based on sexual orientation will be closely scrutinized.  The court wrote:

We hold that when the government attempts to intrude upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence, the government must advance an important governmental interest, the intrusion must significantly further than interest, and the intrusion must be necessary to further that interest.

Will the Court of Appeals strike down Prop 8?  It all depends on the panel – which three judges are chosen at random to hear the appeal.  Whatever their decision (and it could take a while), the losing side will seek to have the entire Ninth Circuit hear the case again, en banc. 

What all this means is that lots and lots of words will be written on the constitutionality of Prop 8 – and implicitly, on the legitimacy of every other state constitutional amendment barring gay marriage. And the words will be virtually the first on gay marriage from the federal judiciary (with a few minor exceptions). And they will be very, very important.

[There is also a much less well known case that was filed in early March, which is in federal district court in Santa Ana, CA: Smelt v. United States. It too challenges Prop 8 and also DoMA on federal constitutional grounds. The government's response to the complaint in that case is due June 11. Plaintiffs did not seek a preliminary injunction, which means that it is unlikely that Smelt will get to the Court of Appeals before Perry, although if the judge dismisses the complaint for failing to make a viable claim, that order can be appealed.]

Either case can only truly be won with a victory in the Supreme Court. Would Stevens, Kennedy, Ginsburg, Breyer and Sotomayor rule that state constitutional amendments barring gay marriage were unconstitutional under the Fourteenth Amendment? If they weren't Supreme Court Justices, I actually think they might.  That is, if they were voting in a legislature or a referendum, I think it is possible that public opinion has shifted so much on this issue that at least several of these five individuals might be persuaded that the current regime is unconstitutional. But would they – all five of them – put the Court in the still definitively minority position of mandating this kind of equality in every state?  I just don't see that happening.

The Perry case could also be not lost, in two ways that come immediately to mind.

First, I can imagine a scenario in which the Ninth Circuit strikes down Prop 8, and then the state of California (assuming that some progressive Dem is making the decision) elects not to seek review in the Supreme Court.  Of couse, rightwingers can imagine the same scenario, which is why the Alliance Defense Fund is seeking to intervene as a defendant. Given that California AG Jerry Brown did decline to defend Prop 8 in the Strauss case before the state supreme court, I think that ADF has a pretty good argument for being granted intervenor status.  Once a party has intervened, it can file appeals and make the other litigation decisions that an original party can make. An intervenor is not relegated to filing amicus briefs, the great majority of which are read only by the judges' clerks.

Second, California voters could repeal Prop 8, thus making the case moot. How ironic is it that civil rights advocacy groups might seek a popular referendum so that they don't have to live with the decision of a federal court?

Is it impossible that this lawsuit – of all cases – will turn out to be the gamechanger, the big kahuna of lgbt rights? No. And the stock market could gain 1,000 points on Monday.  But I wouldn't put any money on either of those long shots paying off.


3 Responses to The Perry case and the roller coaster ride to come

  1. Mad Professah June 2, 2009 at 2:48 AM

    Exactly. What Perry really shows is the hubris of two white guys who think they own the world.

    I seriously doubt they will be able to do much damage, since every Federal court that hears the case will almost certainly summarily rule against them.

  2. RON December 7, 2009 at 12:49 PM


  3. RON December 8, 2009 at 9:20 AM

    Second, California voters could repeal Prop 8, thus making the case moot

    Wrong,Wrong, Wrong a case will not be moot if the possibility of a continued harm exist. In this case even if the voters repeal Prop 8 under California rules the other side could file a new Prop in the next election repealing the new law and if passed the rights of Equality would be ripped away all over again ; therefore the possibility of a contined harm exist and the case would not be moot – even if the voters did overturn Prop 8

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